4 

THE  SHIP  SUBSIDY  BILL 

: 

_ _ _ _ _ _ 


SPEECH 


HON.  HENRY  ST.  GEORGE  TUCKER 

OF  VIRGINIA 

IN  THE 

HOUSE  OF  REPRESENTATIVES 


TUESDAY,  NOVEMBER  28,  1922 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1923 

26856—23421 


JF 


SPEECH 

OF 


THE  SHIP  SUBSIDY  BIEL. 

Mr.  TUCKER.  Mr.  Speaker,  this  bill  has  been  so  amply  and 
ably  discussed  by  the  gentleman  from  Alabama  [Mr.  Bank- 
head],  the  gentleman  from  Tennessee  [Mr.  Davis],  the  gentle¬ 
man  from  Texas  [Mr.  Hardy],  and  my  colleague  [Mr.  Bland] 
from  Virginia  that  little  is  left  for  discussion  which  has  not 

.  '  •,  k  4 . 

... 

already  been  covered  by  these  conclusive  arguments.  I  desire, 
therefore,  to  direct  the  attention  of  the  House  for  a  moment  to 
the  pending  motion  to  strike  out  all  of  section  410,  including 
(a),  (b),  (c),  and  (d).  ■> 

Section  410  (a)  is  as  follows: 

Whenever  the  hoard  determines  that  in  order  to  promote  the  welfare 
of  the  United  States  the  operation  of  vessels  in  any  particular  service 
or  of  any  particular  type  and  kind  is  desirable  and  necessary,  and 
that  the  rate  of  compensation  authorized  under  section  404  is  insuffi¬ 
cient  to  induce  the  operation  of  vessels  in  such  service  or  of  such  type 
and  kind,  the  board  in  making  the  contract  for  compensation  may  pro¬ 
vide  therein  for  the  increase  of  the  rate  of  compensation  authorized 
In  respect  to  such  vessel  under  said  section  to  such  an  extent  as  it 
deems  necessary  to  procure  the  establishment  and  maintenance  of  such 
service  and  the  operation  of  vessels  in  such  service  or  the  operation 
of  vessels  of  such  type  and  kind ;  but  the  rate  of  compensation  as  so 
increased  shall  not  exceed  twice  the  rate  authorized  by  said  section. 
As  used  in  this  subdivision  and  in  section  411  the  term  “service’' 
includes  the  route  on  which  the  vessel  operates,  the  frequency  of  sail¬ 
ings,  and  the  speed  which  she  maintains. 

An  examination  of  the  above  provision  clearly  shows  an 
attempt  on  the  part  of  the  framers  of  the  bill  to  take  from  Con¬ 
gress  the  power  of  legislation  and  place  such  power  in  the 
Shipping  Board.  If  this  be  so,  of  course  it  is  beyond  the  power 
of  Congress  to  accomplish. 

2G85G— 23421  3 


598573 


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Article  I.  section  1.  of  the  Constitution  provides  “all  legisla¬ 
tive  powers  herein  granted  shall  he  vested  in  a  Congress  of  the 
I  hi  i  ted  States  which  shall  consist  of  a  Senate  and  a  House  of 


Representatives.”  This  is  an  exclusive  grant  of  every  legisla¬ 
tive  power  to  the  Congress,  and,  therefore,  the  executive,  the 
iudiciarv,  and  all  others  arms  of  the  Government  are  excluded 
from  its  use.  This  principle  is  so  well  recognized  as  to  need 
no  further  discussion.  Does  the  above  paragraph,  then,  take 
from  Congress  the  power  of  legislation  and  give  it  to  the  Ship¬ 
ping  Board? 

Under  section  -104  of  the  bill  the  rate  of  compensation  is  de¬ 
termined  by  Congress  for  all  vessels;  This  rate  is  carefully  and 
speeitieally  determined  by  the  committee  in  six  pages  of  the  bill 
embracing  sections  404,  405,  and  406.  Having  determined  with 
precision  what  that  compensation  should  be,  the  above  para¬ 
graph  (a)  says  that  if  the  Shipping  Board — not  the  Congress 
that  has  the  power  to  legislate— but  if  the  Shipping  Board  de¬ 
termines  it  is  “  desirable  and  necessary  ”  to  have  vessels  of  a 
particular  type  in  its  service  and  the  Shipping  Board — not  Con¬ 
gress — determines  that  the  compensation  under  section  404  is 
insufficient  to  induce  such  vessels  to  enter  such  service,  the  Ship¬ 
ping  Board — not  Congress — may  provide  for  a  change  of  the 
rate  in  section  404  and  increase  it  “  to  such  extent  as  it— not 
Congress — deems  necessary,”  and  so  forth. 

The  power  to  exercise  judgment,  the  power  to  exercise  dis¬ 
cretion,  the  power  of  determination — that  is,  of  fixing  a  status 


as  permanent  amidst  a  nndtifu.de  of  conflicting  facts  and  of  mak- 
ing  that  status  final — that  i$  the  power  of  legislation.  But 
see  what  a  latitude  by  this  paragraph  is  given  to  the  Shipping 
Board,  “whenever  the  board  determines  that  in  order  to  pro- 

l  «* 

mote  the  welfare  of  the  United  States.”  What  a  vision!  What 
powers  of  determination  and  decision  !  What  unlimited  scope 


for  the  exercise  of  judgment  and  discretion! 


The  welfare  of 


the  United  States”  is  at  stake.  That  welfare  follows  the  com¬ 
merce  of  the  world  and  goes  with  every  vessel  that  plows  the 

seas.  It  is  closely  woven  into  State,  interstate,  and  intcr- 
”0856 — 25421 


c 


:a 


national  commerce.  It  sits  at  the  council  table  of  the  Nation 
directing  and  controlling  our  international  relations,  and 
reaches  as  truly  the  hovel  of  the  poor  as  the  mansion  of  the 
rich.  A  power  with  no  limit  but  its  own  vision,  with  no  re¬ 
straint  but  its  own  desires,  and  this  unlimited  power  is  at¬ 
tempted  to  be  taken  from  the  Congress  of  the  United  States 
to  be  exercised  by  the  Shipping  Board.  The  power  to  fix  this 
subsidy  or  bonus  under  all  the  circumstances  of  the  case  is  a 
legislative  power.  This  has  been  done  in  sections  404,  405,  and 
400,  and  having  been  done  this  bill — section  410 — seeks  to  abol¬ 
ish  sections  404,  405,  and  400  and  lodge  this  power  in  an 
abortive  legislative  agency  known  as  the  Shipping  Board. 

Second,  it  gives  to  the  Shipping  Board  the  power  to  legislate 
for  “the  welfare  of  the  United  States”  when  Congress  itself 
has  no  power  to  legislate  for  “  the  welfare  of  the  United 
States.”  Can  Congress,  itself  incapable  of  doing  a  thing,  vest 
in  another  the  power  to  do  what  it  can  not  itself  do?  Some 
ambitious  statesmen  have  in  times  past  invoked  the  power  of 
Congress  to  legislate  for  “  the  general  welfare  of  the  United 
States,”  but  it  remains  for  this  Congress  to  produce  those  bold 
enough  to  suggest  a  further  extension  of  that  power  in  its 
application  to  “the  welfare  of  the  United  States”  without  the 
semblance  of  constitutional  sanction.  The  principle  involved 
here  is  simple.  Congress  may  construct  a  piece  of  legislation 
complete  in  itself,  except,  first,  as  to  the  time  of  its  going  into 
operation,  and  that  time  may  be  a  fixed  point,  as  July  1,  1923, 
or,  second,  upon  the  happening  of  a  certain  fact  or  event,  which 
fact  or  event  is  to  be  determined  by  a  designated  party  or 
agency,  but  such  party  or  agency  can  not  change  provisions 
already  fixed  and  established  in  the  law.  The  paragraph  we 
are  considering  (a)  violates  this  principle.  Sections  404,  405, 
ami  400  fix  and  determine  the  amount  of  subsidy  to  be  granted, 
while  this  paragraph  gives  the  Shipping  Board  the  power  to 
change  these  and  establish  a  different  rate  of  subsidy. 

Two  cases  may  be  quoted — and  there  are  many  others  that 
could  be — which  I  take  from  the  speech  of  Senator  Thomas  J. 
gasr.a — 2:1421 


G 


Walsh,  of  Montana,  in  the  Senate  of  the  United  States  on  May 
S,  1922 : 

Tlic  legislature  can  not  delegate  its  power  to  make  a  law  ;  but  it  can 
make  a  law  to  delegate  a  power  to  determine  some  fact  or  state  of  things 
upon  which  the  law  makes,  or  intends  to  mfike,  its  own  action  depend. 
(Locke’s  Appeal,  72  Pa.  St.  491,  498.) 

The  result  of  all  the  cases  on  this  subject  is  that  a  law  must  be  com¬ 
plete,  in  all  its  terms  and  provisions,  when  it  leaves  the  legislative 
branch  of  the  Government,  and  nothing  must  be  left  to  the  judgment 
of  the  electors  or  other  appointee  or  delegate  of  the  legislature,  so 
that,  in  form  and  substance,  it  is  a  law,  in  all  its  details,  in  praesenti, 
but  which  may  be  left  to  take  effect  in  future,  if  necessary,  upon  the 
ascertainment  of  any  prescribed  fact  or  event.  (Dowling  v.  Lanca¬ 
shire  Insurance  Co.,  92  Wis.  G3.) 

This  principle  is  strongly  affirmed  in  Field  v.  Clark  (143  U.  S., 
p.  (592  et  seq.),  wherein  it  is  decided  that  upon  the  determina¬ 
tion  by  the  President  of  certain  facts  and  the  announcement  of 
such  facts,  that  ipso  facto  duties  on  certain  articles  were 
changed,  not  to  such  duties  as  might  he  named  hy  the  President 
hut  to  those  specifically  named  in  the  hill.  The  President’s 
function  then  was  in  no  wise  legislative,  but  declaratory.  Con¬ 
gress  in  the  bill  prescribed  the  duty  which  was  to  take  effect 
when  the  President  declared  a  certain  fact. 

This  section  410  (a)  we,  therefore,  hold  is  unconstitutional 
and  void,  and  while  the  section  is  viciously  bad  in  principle,  in 
that  it  gives  to  any  board  the  right  to  double  the  subsidy  to  be 
paid  (that  is  bad  enough),  but  when  it  is  noticed  that  this  bill 
provides  for  this  as  a  continuing  appropriation  for  10  years, 
during  which  time  this  board  will  probably  change  its  personnel 
in  its  entirety  after  we  pass  this  bill,  we  are  actually  granting 
this  great  legislative  power  to  a  body  of  men  that  we  know 
nothing  of.  The  present  board  may  command  the  confidence 
of  some  who  believe  that  they  would  not  use  this  power  un¬ 
justly;  but  in  a  year  or  two  the  board  will  begin  to  change,  and 
during  the  length  of  this  bill  we  are  safe  in  saying  that  not  a 
member  of  the  present  board  will  be  on  it  at  the  end  of  10  years, 
and  we  are  actually  granting  these  great  powers  to  unknown 
men. 

I  have  never  known  a  bill  in  Congress  that  contained  as  many 
vicious  provisions  as  the  pending  bill,  and  if  passed  in  the  form 
26856—23421 


7 

in  which  it  came  from  the  committee  by  the  Republican  Party, 
I  think  will  relieve  the  Democrats  of  the  necessity  of  a  campaign 
two  years  hence  for  the  Presidency.  It  is  a  fitting  complement 
to  the  Fordney  tariff  bill.  It  is  full  of  special  legislation  for 
the  great  interests  of  the  country  at  the  expense  of  the  great 
mass  of  the  people.  If  it  passes  this  House  in  its  present  form, 
it  will  never  pass  the  Senate,  in  my  judgment. 

2G856 — 2342i 

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